The independent inquiry into child sexual abuse is asking what improvements can be made to the law on civil compensation and criminal injuries compensation claims. The purpose of this part of the inquiry is to examine whether victims of abuse have proper access to justice and whether the current systems operate fairly.
Who is at fault?
The inquiry will look at the civil justice system, which in this country is a "fault-based" system. This means that a claim cannot be started where there has been no fault on the part of an individual or organisation. For example, the courts do not consider that a local authority is at fault for abuse committed by foster parents, and so it is not possible to claim against a local authority in such circumstances.
The civil courts rely to a large extent on insurance being in place to pay for the compensation. The effect of these limits is that many people who have been abused cannot make a claim through the courts. This might be because they have been abused by a family member who has since died or does not have any money to pay for the compensation. This could also be because it is a private care home which has gone out of business and insurance cannot be found.
Other problems are that the legal process can take a long time and the person bringing the case may have to be prepared for a tough cross examination in court. Over the last 15 years there has been progress, but there are still large gaps in the system and many people will not get the justice they are looking for.
The Criminal Injuries Compensation Authority
It is also possible to make a claim via the Criminal Injuries Compensation Authority (CICA). This is a scheme that allows victims of crime to be made an award of compensation. The awards are normally lower than those given by the courts and the CICA scheme also does not pay legal costs. Solicitors, therefore, have to be paid out of the award paid to the victim.
There are two main problems with this scheme:
- The application needs to be made within two years of the first report to the police. Many victims do not know about CICA claims and it is common for a victim of abuse to be approached by the police to assist with the criminal conviction, yet they do not get told about CICA claims. Often by the time they find out they can claim the two year time limit has passed.
- The second problem is that the CICA awards are reduced for people who have criminal convictions of their own. This applies to a higher than average proportion of abuse victims and the rule even applies where the abuse happened before the person claiming committed any offences. This is unfair. The CICA scheme has many gaps, the result being that many victims of abuse cannot make a claim at all. If their abuser is dead they will also not get any justice through the criminal courts.
What is the solution?
Many people will have different views on this and there are a variety of ways that better access to justice could be achieved. One suggestion is for a "no-fault" compensation scheme to be set up. This was done for miners who worked for the coal board and suffered lung disease. A similar scheme was set up for those who developed cancer following exposure to asbestos.
One thing is for sure, any real improvements must involve a determined approach from Government to deliver, and they will need to be prepared to spend money to achieve this. Victims of abuse should expect to be taken seriously and it is right that we should be prepared to give them the help they deserve.
If you have a query for Switalskis' Specialist Child Abuse Claims Department, please call 0800 138 4700.
Disclaimer: The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.